Scalia’s Problem

January 4, 2011 | By | 11 Replies More

Recently, Justice Antonin Scalia shot his mouth off about another bit of “social” judicial opinion and managed to be correct to a fault again.  Here is the article.  Basically, he is of the opinion that if a specific term or phrase does not appear in the Constitution, then that subject is simply not covered.  Most famously, this goes to the continuing argument over privacy.  There is, by Scalia’s reasoning (and I must add he is by no means alone in this—it is not merely his private opinion), no Constitutionally-protected right to privacy.

As far as it goes, this is correct, but beside the point.  The word “private” certainly appears, in the Fifth Amendment, and it would seem absurd to suggest the framers had no thought for what that word meant.  It refers here to private property, of course, but just that opens the debate to the fact that there is a concept of privacy underlying it.

The modern debate over privacy concerns contraception and the first case where matters of privacy are discussed is Griswold v. Connecticut, 1965.  That case concerned the right of a married couple to purchase and use contraception, which was against the law in that state (and others).  The Court had to define an arena of privacy within which people enjoy a presumed right of autonomous decision-making and into which the state had no brief to interfere.  Prior to this, the Court relied on a “freedom of contract” concept to define protected areas of conduct.  Notice, we’re back in the realm of property law here.

People who insist that there is no “right to privacy” that is Constitutionally protected seem intent on dismissing any concept of privacy with which they disagree, but no doubt would squeal should their own self-defined concept be violated.  Therein lies the problem, one we continue to struggle with.  But it does, at least in Court tradition, come down to some variation of ownership rights—which is what has made the abortion debate so difficult, since implicit in it is the question of whether or not a woman “owns” her body and may therefore, in some construction of freedom of contract, determine its use under any and all circumstances.

Scalia would love to overturn Roe v. Wade and I have no doubt his pronouncement that women do not enjoy protection from discrimination in the Constitution is part and parcel of his desire to see the Constitution set in the same kind of stone as the Ten Commandments—unchanging, implacable, unadaptable.  Arguing that because something isn’t listed in the Constitution is an attempt to dismiss a priori any Court decisions that might address changed social conditions with which he doesn’t agree.

The Fourteenth Amendment addresses discrimination against citizens.  So, are not women citizens?  Of course they are, and Scalia likely would not argue they weren’t.  However, they, like certain minorities, are citizens with specific attributes that make them in some ways separate from others.  At least, in theory.  Does, for instance, the Fourteenth Amendment protect men from sexual discrimination?  It should, but the question would arise if men can be discriminated against on the basis of gender—at least, in a specific and non-universal way.  In other words, can a man be discriminated against on the basis of his genital configuration and its implications the same way a woman can suffer discrimination?

Image by The Higgs Boson (Creative Commons)

Scalia, as a strict constructionist, would like to believe that the framers intended that the Constitution never alter in its meaning.  This is impossible since context inevitably plays a role, and since times have changed and brought with them all manner of social adjustments not foreseen or even desired by the founders, his dismissals on these grounds of specific terminology are silly and even a bit pathetic.  Harry Blackmun wrote, in Roe, “The right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty…or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”  I think the same can be argued for any presumed protection against discrimination on any basis.

Everyone, even, apparently, Justices on the Court, seem to forget the Ninth Amendment.

But he does make a good point, that it is the Legislature’s job to enact laws to cover these things.  The purpose of the Supreme Court, at its simplest, is merely to vet these laws according to the Constitution.  If the Court, however, has already pronounced on a concept, why is it people seem content to sit back and assume that the matter is closed?  Shouldn’t laws have been enacted in the wake of Roe v. Wade to seal that right in legislation even more concretely than has emerged from a decision which could very well be overturned?


Category: American Culture, Civil Rights, Court Decisions, Culture, Current Events, Law, Politics, Social justice

About the Author ()

Mark is a writer and musician living in the St. Louis area. He hit puberty at the peak of the Sixties and came of age just as it was all coming to a close with the end of the Vietnam War. He was annoyed when bellbottoms went out of style, but he got over it.

Comments (11)

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  1. Brian says:

    "Arguing that because something isn’t listed in the Constitution is an attempt to dismiss a priori any Court decisions that might address changed social conditions with which he doesn’t agree."


    "So, are not women citizens? Of course they are, and Scalia likely would not argue they weren’t."


    " Shouldn’t laws have been enacted in the wake of Roe v. Wade to seal that right in legislation even more concretely than has emerged from a decision which could very well be overturned?"


  2. Brian,

    Basically, my point is that just because the Supreme Court says something is now legal does not mean state legislatures or even Congress cannot or should not put in place legislation securing the right. Because the only thing that stands in the way of a return to back alley abortions (however you define that) is a Supreme Court decision, it is that much easier to undo this protection. There should be laws on the books upholding that decision.

  3. MikeFitz17 says:

    RE: Scalia's latest pronouncement about the meaning of the Constitution and whether it protects privacy rights. It only reminds us of what an arrogant ass he is. I feel bad for his kids. Having a cocksure blowhard for a dad must be sheer misery.

  4. Brian says:

    If Roe were overruled, legislatures would still have to actively legislate to restrict abortion. How would legislation passed now deter those later legislatures? Correct me if I'm wrong but I'm assuming most states use simple majorities to pass laws.

    "Basically, my point is that just because the Supreme Court says something is now legal does not mean state legislatures or even Congress cannot or should not put in place legislation securing the right."

    This seems backwards. Legislatures say what's legal, the courts delineate rights.

  5. Jim Razinha says:

    These are scary times; one sad indicator (Nielsen) says of the top 10 regularly scheduled television shows of 2010 five were "reality", three related to NFL, one NCIS and one sitcom. Of course, the most watched network "news" is …I'll let you guess.

    I'm searching for a term to describe the backward trend we've been on since Reagan (with a brief swing to the positive for part of Clinton's terms), accelerating as we rounded the 21st century corner: "The Age of Unreason" or "Un-Enlightenment" are the first things that come to mind.

    Wikipedia lists Scalia's religion as traditionalist Catholic. Do you think he follows (all of) the original "rules" or the revisions that the Vatican has bulled through the ages? Double standard?

    Here's an outrageous opinion as to why laws of meaning don't get made: The Congress is too busy trying to undo rather than do.

    Thanks for your well-framed post, Mark. I wonder if we get any traffic from members of governing bodies…

    • Erich Vieth says:

      Jim: Scary times, indeed. I worry most that we (through crappy education, media and corrupt political campaign financing) are dismantling any ability we might have to rise up and reverse the disturbing trends you and I are seeing.

  6. Brian,

    Prior to Roe several states were legalizing abortion. That process of legislatively protecting choice ended on the state level with Roe—it was assumed such laws were not needed. Now, Erich can correct me if I'm wrong, but Supreme Court or even Congressional decisions concerning, say, financial reform have not prevented states from going ahead with legislation that was in agreement with such measures, if only to strengthen on the state level civil protections. All I mean is that, as with many progressive measures, after the Supreme Court victory in Roe, progressives did what they often do—sat back and declared "we won", never thinking that they might have to fight that battle again later.

    I got very angry with a fund raiser from NARAL once when I asked what the money was going for. She waffled about funding grassroots organizations and clinics and I asked her how many politicians NARAL had bought. She acted all indignant but I pointed out that her adversaries are doing that and if I gave money to NARAL I expected them to compete as well. Much as I hate that kind of activity, it is naive to dismiss it out of hand when the other side is doing it in opposition.

  7. Erich Vieth says:

    Joan Walsh of responds to the recent Scalia interview:

    "What's most preposterous is that Scalia was part of the most shameful and flagrantly political use – it was abuse, really — of the 14th Amendment in Supreme Court history, when he joined the majority in the Bush vs. Gore decision and stopped the Florida recount, brazenly using "equal protection" as one of the cornerstones. The pro-Bush SCOTUS majority argued that the white, wealthy George W. Bush would have his rights violated if if Florida counties used different procedures to recount votes and, in cases of some ballots, divine voter intent. Now, if Scalia really thought the 14th amendment only intended to make former slaves full citizens, he should have applied it to make sure black voters and black votes were treated fairly in Florida (and in fact, we know they were not.) What a joke.

    Remember, it's also Scalia the strict originalist, who insists we can't interpret the Constitution's authors in light of radically changed circumstances, who has taken the lead in giving "corporations" personhood rights, ruling in Citizens United that campaign-finance laws violated their speech rights under the First Amendment. "Corporations" weren't mentioned by the writers of the Constitution or any of it's amendments; I guess originalism has its limits, where the rights of the wealthy are concerned."

    She elaborates in a video at this same link.

  8. Erich Vieth says:

    Robert Parry of Consortium News had this to say:

    To justify their ruling, the five Republican justices cited the 14th Amendment’s “equal protection” clause in claiming that Florida’s electoral precincts had failed to apply common standards for counting votes. Then, rather than giving the state time to rectify the situation, the justices set a deadline of two hours, effectively assuring Bush’s “victory.”

    In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to “originalism” and “strict construction.” If their partisan and ideological interests require the abandoning of those precepts, the principles are dumped overboard.

    That is what most of us would call hypocrisy or dishonesty. But Scalia, like many on the Right, operates with a curious sense of false righteousness, at least when his “principles” match up with his ideology and partisan interests.

  9. Brian says:

    Mark: stuff is presumed legal unless laws are passed against it. Maybe you should bring it down from the abstract to the specific and give me a hypothetical scenario in which passing legislation to legalize abortion now has an effect after a later overturning of Roe. Show me by describing the timeline and sequence of events.

    Walsh is well off the mark here. Breyer and Souter agreed that equal protection was violated in the Florida recount. Secondly, it was the rights of the *voters* that was considered, not the rights of the candidates. Third, she sets up a straw man of original intent. In fact, Scalia's philosophy gives *no* importance to the *practical* intent of the legislators (having to do with freed slaves) informing their legislating, it's the intent of the *legal language* the legislature produced that he focuses on (setting up standards of equality). Finally, the absence of corporations from the First Amendment in the constitution needn't mean that it doesn't apply to them under consistent originalism. First, the corporations are made up of protected people, and second, for lack of limiting language on which entities are protected it's reasonable to say there are no limits. Would anyone argue that the Sixth Amendment doesn't apply to corporations? She is wrong about everything…

    P.S. I'm not sure why Scalia is described as having "taken the lead" when 1) Kennedy wrote the opinion and 2) Thomas wrote separately to argue for greater rights for corporations than Scalia did (Thomas argued that public reporting of donors was unconstitutional).

  10. Brian,

    I'm not a lawyer, but—

    Several states prior to Roe were legislatively legalizing abortion, New York for one. Legislation can also overturn existing prohibitive law, and through the 60s some states were moving in that direction. There is a body of writing (no, I don't know where to cite it, you might check with NARAL) criticizing the Court for "nationalizing" the issue when steps were being taken locally to decriminalize abortion. Now, in that case I see no reason why supportive legislation could not be enacted to put it into state law guaranteeing, say, access or making it a crime to deny access. These things have no been done. Instead we have seen a steady barrage of limiting laws that have to pass Supreme Court tests to criminalize abortion. Momentum was seized by the antichoice movement in this regard. Nevertheless, by the same token, should Roe be overturned, that would still not prevent individual states from dealing with the matter themselves legislatively.

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